Butt v Tasmania
[2018] TASCCA 3
•28 March 2018
[2018] TASCCA 3
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Butt v Tasmania [2018] TASCCA 3
PARTIES: BUTT, Christopher Roy
v
STATE OF TASMANIA
FILE NO CCA 2740/2017
DELIVERED ON: 28 March 2018
DELIVERED AT: Hobart
HEARING DATE: 6 March 2018
JUDGMENT OF: Estcourt and Pearce JJ, Porter AJ
CATCHWORDS:
Criminal Law – Sentence – Relevant factors – Nature and circumstances of offender – Mental disorder – Major depressive disorder – Consideration of consequences of disorder on relevant sentencing factors – Nature and effect of disorder not such as to make sentence manifestly excessive.
R v Verdins, Buckley and Vo [2007] VSCA 102, 16 VR 269; Director of Public Prosecutions (Acting) v CBF [2016] TASCCA, 1 applied.
Aust Dig Criminal Law [3264]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Attack in public with metal implement causing grievous bodily harm – No error in head sentence of three years' imprisonment with twelve months suspended but long non-parole period made sentence manifestly excessive.
Sentencing Act 1997 (Tas), s 17.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: A Norton
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 3
Number of paragraphs: 71
Serial No 3/2018
File No CCA 2740/2017
CHRISTOPHER ROY BUTT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J (Dissenting)
PEARCE J
PORTER AJ
28 March 2018
Order of the Court
Appeal allowed.
Sentenced imposed on 11 September 2017 quashed.
Appellant sentenced to imprisonment for three years from 4 September 2017.
Twelve months of that sentence suspended for three years from 4 September 2017.
Appellant not to be eligible for parole until he has served 12 months of the term.
Serial No 3/2018
File No CCA 2470/2017
CHRISTOPHER ROY BUTT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
28 March 2018
The appeal
The appellant, Christopher Roy Butt, has appealed against a sentence of three years' imprisonment with 12 months suspended and a non-parole period of half of the operative sentence, imposed on him by Slicer AJ on 11 September 2017. The sentence was imposed for the crimes of causing grievous bodily harm and assault contrary to the Criminal Code, ss 172 and 184. The suspended portion of the sentence was subject to conditions that the appellant "commit no crime or offence of harm to the person or property", for a period of three years, and "undertakes any behavioural or psychological programs as reasonably directed by an authorised prison officer whilst he is in prison".
The principal ground of appeal is that the sentence is manifestly excessive. However specific errors are asserted in the notice of appeal, namely that the learned sentencing judge failed to give sufficient weight to the appellant's plea of guilty, his previous good record, his progress towards rehabilitation, and the effect of his Major Depressive Order on his offending. The notice of appeal also asserts that his Honour erred in finding that the appellant's crimes were not committed spontaneously, and in failing to impose a probation order.
The law as to manifest excess in sentencing
As I have observed in the past in such cases, Professor K Warner, in her book, Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, writes on the subject of appellate review of sentences for manifest excess or inadequacy as follows:
"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."
And, as I have frequently observed in the past in appeals such as the present, where the principal ground is manifest excess or manifest inadequacy, I bear Professor Warner's admonition in mind, and content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34]. His Honour there observed:
"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'
32 In Dinsdale v The Queen (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]
33 Later, in Wong v The Queen (above) at [58] Gaudron, Gummow and Hayne JJ said:
'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. … ."
In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said:
"Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle."
More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly and comprehensively, if I may once again say so with respect, summarised the relevant principles at [8] as follows:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
The facts
On passing sentence the learned sentencing judge set out the circumstances of the crime and the impact upon the complainant. His Honour observed as follows:
"Mr Butt and the complainant, H, were acquaintances. Sometime previous Mr Butt had lent $100 to H and held a grievance about its non-repayment.
On 23 September, H had parked his vehicle on the apron of a service station while he went into the station to purchase some items. Some moments after he had gone, Mr Butt drove past the station and noticed H's vehicle. Mr Butt parked his own vehicle and took out an iron bar, removed his tee shirt and leant against the complainant's utility. Much of what then happened was recorded on videotape taken from the security cameras located at the station. It shows Mr Butt standing and waiting beside H's vehicle. Mr Butt remained stationary in what appeared to be a calm and patient manner. He had with him a metal bar which is normally used to lift or dislodge drainage covers. It has a T bar used as a handle for lifting covers and the like. H's vehicle was parked approximately 20 metres from the store complex.
As H left the store, Mr Butt immediately ran towards him, carrying the iron bar. As he approached the complainant, H, asked, 'Chris, do you really want to do this', to which Mr Butt replied, 'fuck yeah I do'. This exchange belies the claim that the offender had originally approached the complainant to talk to him.
Mr Butt swung the bar and missed. He swung it a second time, striking the complainant behind the left ear, causing the complainant to fall to the ground. Mr Butt then struck the complainant to the left rib area and twice to the head.
A young woman seated in a vehicle observed the attack and attempted to intervene. As she did so, Mr Butt punched the complainant to the face. Mr Butt replied by saying, 'he owes me money', and kicked the complainant, who was lying on the ground, to the face and walked off. The complainant had asked on three to four occasions for his attacker to stop, a plea ignored.
Mr Butt left the scene. The attack was brutal and prolonged, made without notice and had the potential of causing death.
Mr Butt was later apprehended by police and interviewed. He admitted the above events but stated he was receiving medication for anxiety and panic attacks, felt anger at the time, and his outburst followed the laughter of the complainant, causing him to lose control. He explained his anger because the complainant owed him money and had been 'bad mouthing' him.
The Court accepts that he had a grievance but, given that he had waited at the complainant's car whilst holding the metal bar, launched a savage attack and immediately struck the complainant to the head and body, and finished with a kick to the face on the prone victim, it could not be said that it was spontaneous conduct undertaken in the course of a verbal confrontation or an immediate and unthinking response.
The immediate injuries were an 8cm haematoma and a 5cm wound which could be stapled. However, some six days later the complainant re-presented to hospital with symptoms of headache, sensitivity to light, blurred vision, a swollen nose and two black eyes. A CT scan revealed a non-displaced skull fracture in the left occipital bone.
The complainant received further treatment in November 2016. In March 2017 a specialist undertook further examination which suggested that the physical injuries should heal with time and that any long-term consequences of concussion secondary to traumatic brain injury should resolve, provided that the complainant did not suffer further brain injuries. The complainant remains at risk caused by the attack."
The comments on passing sentence
On passing sentence upon the appellant the learned sentencing judge said:
"Mr Butt was originally charged with a lesser offence to which he pleaded not guilty on 13 December 2016. Upon receipt of the further examination of the brain injury, the prosecution amended the charges already stated. Mr Butt was advised of that alteration on 18 July 2017 and changed his plea on 23 August. He is to be afforded some amelioration for that plea, although he could have pleaded earlier to the lesser crimes.
Mr Butt was a 27-year old unemployed male who lived in Claremont. He had been employed as a linesman with Telstra, but lost that employment some three weeks after these events. He grew up in a troubled environment and suffered bullying whilst growing up. He worked for a while in the timber industry and joined Telstra at the age of 22. In 2015 he took several months' sick leave due to a decline in his mental health. He found the workplace stressful, and during this period increased his alcohol consumption to a dangerous degree. His depression increased and his mental health deteriorated in 2016, although medication assisted. He has been unable to afford private psychological treatment. He has never been in prison and has only been convicted on three minor traffic offences.
An assessment report indicates that Mr Butt has had no contact with the Community Corrections Service. He was not deemed suitable for a community based order. He was assessed as suitable for a 12-month probation order and may, upon further assessment, be able to participate in an EQUIPS program and that certain conditions be imposed. The defence seek the imposition of a suspended sentence.
A comprehensive opinion and assessment was provided by Dr Michael Jordan, a consulting psychiatrist who undertook a detailed examination and prognosis. He concluded that Mr Butt suffered from depression and anxiety. Mr Butt had been taking amixolytic/antidepressant medication for approximately six months before these events. Dr Jordan formed the opinion that Mr Butt showed evidence of a Major Depressive Order and needs attention for his alcohol misuse. Dr Jordan suggests appropriate treatment and care, and fears that a custodial sentence may have the opposite effect and compound his condition.
Mr Butt is, given the amendment of the charge in July 2017, entitled to some amelioration of the appropriate sentence. I accept that, at present, the injuries suffered by the complainant will heal in time, but he remains susceptible to long term harm in the event of a further head injury. Nevertheless the accused will also learn through imprisonment that actions have consequences.
In determining the appropriate sentence, I will rely on Cordwell v State of Tasmania [2017] TASCCA 14, Barron v Tasmania (2010) 20 Tas R 114, Inkson (1996) 6 Tas R 1, and the material in Sentencing in Tasmania, Warner, 2nd ed, 11.304-11.310, Tables 6 and 7.
In the present case the appropriate sentence is one of three years' imprisonment. Given that there are some prospects for reform through programs provided within prison, the last 12 months of the sentence will be suspended."
Discussion
I should say at once that, in my view, the learned sentencing judge did not err in finding that the appellant's crimes were not committed spontaneously. The decision to carry out the attack may have been made spontaneously when the appellant saw the complainant's motor vehicle at the service station, but the transcript of the sentencing hearing before his Honour discloses that CCTV footage which was retrieved from the service station depicts the appellant arriving in his van and then approaching the complainant's ute and waiting there for one or two minutes, at the end of which the complainant can be seen approaching, and the attack takes place. If the appellant had not already removed his shirt and armed himself with the iron bar, it might be argued that it was something in the complainant's manner that prompted the appellant to set upon him, but, in my view, that decision had already been taken by the appellant some minutes earlier.
I can also dispose at once of the assertion that the learned sentencing judge erred in failing to impose a probation order. It is clear from the transcript of the sentencing hearing that the appellant had taken steps towards his rehabilitation, despite a lack of funds, and that he had done so on his own initiative. He had established a regular medical regime, had made contact with the Bridge Program to assist with his alcohol abuse, and was investigating volunteer work while contemplating re-entering the work force. It was open to his Honour, having taken the decision to impose an immediate sentence of imprisonment, to form the view that further rehabilitation would occur within the prison system, and as a result of the appellant's own efforts upon his release.
As to rehabilitation, I am of the view that his Honour was entitled to take the approach suggested by Pearce J in Kirkwood v Tasmania [2017] TASCCA 7 at [9], albeit that case involved an offence against s 170 of the Code. Pearce J observed that for a grave crime any entitlement to lenience arising from the appellant's age and the prospect of his reform is to be subordinated to the dominant sentencing considerations of general and specific deterrence, denunciation, punishment and vindication of the victim. As counsel for the State submitted to his Honour on the sentencing hearing, the attack was unprovoked, utilised a weapon, occurred in a public place during daylight hours, and there were a number of people in the vicinity who were exposed to the violence, including children. It was prolonged in the sense that it involved more than one strike and it continued despite the efforts of a member of the public to intervene. However, whether the learned sentencing judge did subordinate the appellant's rehabilitation to other sentencing considerations will really only be seen by determining whether the sentence he imposed was, in all the circumstances of the case, manifestly excessive. Likewise the asserted errors in failing to give sufficient weight to the appellant's pleas of guilty, his prior good record and the impact of his Major Depressive Disorder on his offending can only be assessed in the context of the question of manifest excess.
Turning to the crimes of causing grievous bodily harm and assault, in a case of what was really a single course of criminal conduct, the more serious offence is obviously that of causing grievous bodily harm contrary to s 172 of the Code.
In Director of Public Prosecutions v Blackaby [2013] TASCCA 4, I said at [18], with Blow CJ and Wood J agreeing:
"There is no doubt that counsel for the appellant was correct in submitting that because specific intent is required for the commission of a crime contrary to s170 of the Criminal Code it is generally regarded as a more serious crime than that of grievous bodily harm under s172 of the Code. In Director of Public Prosecutions v Blyth (supra), Blow J (as he then was), with whom Porter and Wood JJ agreed, said, unambiguously at [8]:
'8 A crime against s170 involving a specific intent to do grievous bodily harm is generally regarded as worse than one against s172, which does not necessarily involve such an intent: R v Allen [1999] TASSC 112 per Cox CJ at par [2]; Barron v Tasmania [2010] TASCCA 3 at par[21].'"
In Barron (above), Wood J, with whom Blow J (as he then was) and Porter J agreed, said at [21]:
"21 It is worthwhile to take some time to focus on the nature of the crime under consideration and some well settled sentencing principles that apply to the Code, s172. A specific intention to cause grievous bodily harm is not an element of this crime. The crime of causing grievous bodily harm requires a mental element involving either an intent to cause grievous bodily harm or subjective recklessness, ie foresight of the likelihood of that kind of harm (R v Bennett [1990] Tas R 72). By contrast an essential element of a crime against s170 is the intention to cause some kind of serious bodily harm (R v Allen [1999] TASSC 112, per Cox CJ at par2)."
It has been repeated by a number of judges in this State that a crime under s 170 "ordinarily" carries a penalty within the range of three to seven years.
In R v Allen [1999] TASSC 112, Wright J observed at [13]:
"13 Count 1 in the indictment alleged a breach of the Criminal Code, s170. The seriousness of such criminal conduct has been reviewed in a number of previous decisions of this Court (see Lovegrove v R [1961] Tas SR 106; Brown v R (supra); Bennett v R [1990] Tas R 72; R v Marshall 70/1990; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1). In Papazoglou v R 9/1963, the Court of Criminal Appeal refused to dissent from comments made by the Chief Justice when imposing sentence upon the appellant for an offence against the Code, s170 that:
'Ordinarily I would think that this crime would require a sentence of from three to seven years.'
When these comments are considered alongside the current practice of the Court in sentencing violent criminals, they do not appear to me to be out of place, even now, some 36 years later. Sentences for rape commonly fall within a similar range and there appears to me to be no sound basis for suggesting that a deliberate crime of violence which inflicts severe trauma with long term disability upon another human being is any less serious than a case of serious sexual assault."
These comments were re-affirmed recently in Jay v Tasmania [2016] TASCCA 12, and in Price v Tasmania [2016] TASCCA 22, in which cases sentences of seven years' imprisonment with a non-parole period of five and a half years, and ten years' imprisonment with a non-parole period of six years were held not to be manifestly excessive and were upheld by this Court, albeit in cases involving injuries somewhat more severe than those suffered by the victim in the present case.
In Director of Public Prosecutions v Rogers [2011] TASCCA 17 at [16], where Evans J, with whom Porter and Wood JJ agreed, observed at [16]:
"16 The crime that is the subject of count 2 is committing an unlawful act intended to cause bodily harm in breach of the Code, s170. It is a serious crime. An element of it is a specific intent to disable or do grievous bodily harm. In DPP v Blyth [2010] TASCCA 10, Blow J, agreed with by Porter and Wood JJ, reviewed a number of authorities on the sentencing range that was appropriate for a contravention of s170. The effect of that decision and the authorities to which it refers is that subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, ordinarily a contravention of s170 should attract a sentence of imprisonment of between three to seven years. The decision also refers to the importance, when sentencing for this crime, of the severity of the victim's injuries and the extent of any permanent disability or incapacity."
These authorities make it clear that, subject to the unimpaired discretion of a sentencing judge to impose a sentence that is reasonable, a contravention of s 170 should ordinarily attract a sentence of imprisonment of between three to seven years.
I should add that the range of three to seven years referred to is by no means a hard and fast rule. Indeed, the contrary is the case. So much is clear from the judgment of Blow J in Director of Public Prosecutions v Blyth (above) at [10]-[14], with Porter and Wood JJ agreeing:
"10 Counsel referred us to a number of cases where offenders were sentenced for contravening s170 or s172, including several appeals. All of those cases turned on their own facts. Most of them do not warrant discussion.
11 Papazoglou v R (unreported, 9/1963, Court of Criminal Appeal) concerned a sentence of two years' imprisonment imposed by Burbury CJ. The appellant was convicted under s170 on the basis that he hit a man on the head with a piece of wood intending to do grievous bodily harm. Burbury CJ provided the Court of Criminal Appeal with a report which concluded as follows:
'These circumstances induced me, with some hesitation, to impose only a two years sentence. Ordinarily I would think that this crime would require a sentence of from three to seven years.'
12 At 3, Gibson J said:
'In the case before us I would agree that if the Chief Justice had said, without qualification, that an offence against section 170 should be punished by a sentence of imprisonment between the limits of three and seven years, he would be unduly fettering his discretion and especially so as to the lower limit. But he qualifies this by prefacing his remark with the word, 'ordinarily' which leaves the discretion unimpaired within the bounds of what is reasonable. I do not think, therefore, that it has been shown that we should infer that he proceeded on any wrong basis in approaching the task of sentencing the applicant.'
13 Crawford J, at 4, said the following:
'It is one's common practice and the only proper one, whether sitting as a trial judge imposing a sentence, or sitting in this Court reviewing a sentence, to commence by thinking of the approximate standards of penalty (set by judges and Court of Criminal Appeal) for the crime committed and then by taking into account the many other factors which may be taken into account, including any variations from the typical case and he circumstances leading up to an surrounding the commission of the particular offence being dealt with. This applies particularly to the serious crimes involving personal violence where the deterrent aspect is relevantly more important than it is in the consideration of sentences for the more usual crimes involving dishonesty.
In using the words complained of, the learned Chief Justice was doing no more than this. His standard is a wide one and for ordinary cases it is approximately appropriate.'
14 Cox J expressed a similar view." [My emphasis.]
I have set out the foregoing passages to make it clear that when considering the sentence of three years' imprisonment in the present appeal it must be borne in mind firstly, that a crime against s 170, involving as it does a specific intent to do grievous bodily harm, and which ordinarily attracts a sentence of three to seven years' imprisonment, is generally to be regarded as worse than a crime against s 172 for which the appellant was in part sentenced and, secondly, that s 172 requires a mental element involving either an intent to cause grievous bodily harm or foresight of the likelihood of that kind of harm. Although the issue of the relevant mental element was not raised by anyone on the sentencing hearing, nor mentioned in the learned trial judge's comments on passing sentence, the appellant should, in my view, be regarded as sentenced on the basis of recklessness and not on the basis of an intention to cause grievous bodily harm.
In the present case, perhaps more by good luck than anything else, the complainant's injuries and their sequelae were not as serious as some other cases. He escaped with a 5 centimetre wound that was stapled in the emergency department of the hospital, although he was later found to have a non-displaced skull fracture to the left occipital bone, with no secondary brain bruising or bleed. He was to be admitted to hospital to manage his skull fracture and to exclude a cerebral spinal fluid leak, and to commence concussion management, however he discharged himself. Taking all matters into account, including the nature of the attack and the weapon used, as well as the extent of the complainant's injuries, I am of the view that the appellant's offending is at the lower end to the middle of the range of seriousness for offences of its kind.
In Barron v Tasmania [2010] TASCCA 3, 20 Tas R 114, Wood J, with whom Blow and Porter JJ agreed, whilst accepting that comparable sentences imposed for this crime are useful as setting a broad sentencing range, made the following observations at [28]–[30]:
"28 The submissions for the appellant focus on the notion of the current sentencing range and require the range to be identified and then considered in light of the sentence in this case. Essentially, the submission is that, as a fact, all sentences for the crime of s172 have been lower than five years, and that any sentences approaching the five year mark are more serious than this case. The submission on behalf of the appellant that his sentence exceeded the sentencing range involves two propositions. The first proposition is the simple assertion of fact that the sentence in this case falls outside the sentencing range because it is the longest sentence imposed by the Supreme Court of Tasmania. The second proposition is that the sentence is outside the sentencing range because it is disproportionately high, compared to other sentences imposed in other comparable cases.
29 This method of analysis, and a comparison between the appellant's sentence and a few sentences at the top of the range of sentences imposed in the past, tends to create an impression that an upper limit has been set that cannot be exceeded unless justification for a longer sentence is established. This method involving the notion of an upper limit or ceiling may be appropriate in cases where there is a well-established pattern arising from a significant number of sentences imposed for the same kind of conduct over a long time. However, that is not the case here. This is a crime that captures a diverse range of conduct and there is not a substantial number of sentences that fall at the upper end of the range.
30 In Allen, at par14, Wright J made observations about the assistance that can be gained from comparable cases and that often they were useful only to a limited extent in order to obtain a broad sentencing range:
'Ever since Dowie v R [1989] TASSC 44; [1989] Tas R 167, I have maintained that whilst a sentencing judge should strive to achieve consistency in sentencing, this is not a process which involves the close comparison of one case with another to ensure that the new sentence being contemplated coincides closely with that passed on an earlier occasion by another judge. The facts and circumstances of one crime are rarely, if ever, identical to those of another. The injuries sustained by the victim of one crime of violence are usually very different from those sustained by another. The relationships between the victim and the offender are frequently different. The antecedents of the offenders are always different. I find that whilst the definition of a broad sentencing range will often be useful, any attempt to distil a tariff for a particular crime or a particular type of offender is usually illusory'."
As Wood J said in Barron, causing grievous bodily harm is a crime that captures a diverse range of conduct, however, in my view, taking account of the appellant's prospects of rehabilitation and his prior good record, a sentence of three year's imprisonment with twelve months suspended would have been a wholly appropriate sentence before any reduction to reflect the appellant's pleas of guilty and before taking account of any relevant Verdins principles: R v Verdins, Buckley and Vo [2007] VSCA 102, 16 VR 269.
As to his pleas of guilty, indicated to the State on 18 July 2017, I am of the view that the appellant was entitled to the full benefit of taking that course because there had, up until that time, been a genuine investigation conducted in relation to his mental health, including in particular in relation to s16 of the Code as to his criminal responsibility for his acts. Once that investigation had been conducted and the results known, the State was advised that the matter was to resolve as a plea of guilty. The learned sentencing judge was apprised of this by the appellant's counsel on the sentencing hearing.
In Director of Public Prosecutions v Harington [2017] TASCCA 4, Wood J said at [36]:
"I accept that the respondent's plea of guilty is a significant mitigatory factor. In determining an appropriate discount, the timing of the plea is important, an early plea attracts a greater discount than a late plea. Here, the respondent's pleas of guilty were entered at a very late stage but saved the victims from giving evidence. His pleas of guilty may, in the circumstances of this case, result in a discount of up to 20%."
I respectfully agree with her Honour's approach.
As to Verdins, in an important paper delivered by Adjunct Professor David Porter QC to the Law Society of Tasmania, Criminal Law Conference on 24 February 2017, his Honour concluded succinctly that:
"Verdins is noteworthy for its emphasis on impaired mental functioning as an effect of mental disorder or abnormality, rather than formal diagnoses and descriptors. Impaired mental functioning can be made directly relevant to various aspects of sentence. Verdins outlines particular ways in which it can be relevant. Those ways have the potential to moderate or eliminate a sentencing factor so as to reduce or alter in favour of the offender, an otherwise appropriate sentence. Verdins does not operate to exclude other ways in which impaired mental function can be made relevant to the sentencing process. In all cases, what is required is proof of the nature and effect of the impairment, and the way in which it is relevant to the particular consideration."
In the present case, the learned sentencing judge had proof of the nature and effect of the appellant's mental impairment in the form of a Major Depressive Disorder and the way in which it was relevant to his offending. In the report referred to by his Honour in his comments on passing sentence, which had been prepared by Dr Michael Jordan, it was noted that the appellant was at the time of his offending suffering from a Major Depressive Disorder and would have been more liable to make ill-considered decisions. Indeed Dr Jordan opined that the appellant's symptoms would have increased his propensity to act in an impulsive, disinhibited fashion when faced by adversity.
Moreover the learned sentencing judge had been advised by the appellant's counsel in her submissions on the sentencing hearing that within about two months of his offending the appellant was placed on a mood stabiliser, and he had maintained use of his prescription medication since that time. Counsel informed his Honour that the appellant instructed that the effect on his mood has been quite remarkable, that he no longer felt uncontrollable anger as he did previously, and he was dedicated to maintaining use of it for as long as it is recommended to him.
The first three of the Verdins principles are (a) impairing the offender's ability to exercise appropriate judgment; (b) impairing the offender's ability to make calm and rational choices, or to think clearly; and (c) making the offender disinhibited. The correct approach was said in Verdins at [15]-16] to be that general deterrence was not eliminated but still operated, sensibly moderated in cases where the principles were engaged, as the first three seem to me to be in the present case. The extent of moderation was said to depend on the nature and severity of the symptoms and their effect upon mental capacity. As noted by Porter AJ in his paper, the court in Verdins acknowledged that it was the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce blameworthiness, but said the effect on the assessment will vary with the nature and severity of the condition, and the nature and seriousness of the offence.
Whilst mindful of the observations of a court of five judges in Pantazis v The Queen [2012] VSCA 160 at [195] that an impairment that simply predisposes a person to flawed decisions is not sufficient, nonetheless, in my view, in the present case the necessary connection between the appellant's mental impairment and his offending was established. I point out that the offending may not have occurred at all if the appellant had been properly medicated at the time. I note the submission of counsel for the respondent, Ms Denton, that Dr Jordan did not go as far as to say that the appellant’s mental health "caused his actions" but Verdins considerations are not reserved only for cases where mental impairment is the sole or controlling causative factor. A "realistic connection" with the offending and an "impaired ability to make calm and rational choices" are sufficient to enliven principles one to four of Verdins (Director of Public Prosecutions (Vic) v O'Neill [2015] VSCA 325, 47 VR 395 [74]-[75]). Such a connection and such an impaired ability are apparent in this case to my mind. As a result the appellant's blameworthiness is reduced, and general and specific deterrence need not be given prominence as sentencing considerations.
While the existence of a mental impairment will almost always be relevant to the sentencing of an offender, and will often result in a lower sentence, such modification is not always the case: GOK v The Queen [2010] WASCA 185 at [58] citing Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68. I am of the view however that a modified sentence is warranted in the appellant's case. Having said that, I am not persuaded that a wholly suspended sentence would be appropriate given that it is clear from what was said by the appellant's counsel on the sentencing hearing concerning the investigations made as to the appellant's criminal responsibility that mental illness was not a sole and controlling causative factor in that he was not acting from an irresistible impulse within the meaning of s 16 of the Code. Moreover, notwithstanding the causal contribution of his mental impairment, it is apparent that the appellant at least a minute or two to consider his position after he armed himself and before the complainant appeared on the scene.
As I have already noted, Porter J, in Braslin and Cowen v Tasmania (above) at [31]-[34], considered the principles relating to the role of an appellate court on an appeal against sentence. It needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to show a miscarriage of the sentencing discretion. For the reasons I have given I do discern a miscarriage of the learned trial judge's sentencing discretion in the present case. In my view the sentence of three years' imprisonment can be said to be unreasonable or plainly unjust. Error is apparent to my mind. I consider that manifest excess has been established.
Disposition
It follows that I would uphold the appeal. Taking into account the nature and extent of the attack as depicted in the CCTV footage and the appellant's personal circumstances and allowing for what I consider to be appropriate discounts for the appellant's pleas of guilty and for his reduced blameworthiness due to mental impairment, I would set aside the sentencing order and substitute a sentence of two years' imprisonment with 12 months suspended on condition that the appellant commit no offence punishable by imprisonment for a period of two years. I would order that the appellant not be eligible for parole until he has served half of the operative period of the sentence.
File No CCA 2740/2017
CHRISTOPHER ROY BUTT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
28 March 2018
This is a sentencing appeal. The appellant, Christopher Butt, pleaded guilty to causing grievous bodily harm and assault. He was sentenced by Slicer AJ on 11 September 2017 to imprisonment for three years from 4 September 2017. His Honour, when sentencing, ordered that "the last 12 months of the sentence will be suspended" and that the "non-parole period is that of 18 months".
At the hearing of this appeal the appellant was unrepresented. It is obvious that he obtained some legal assistance in formulating his appeal. There are seven grounds. The first ground is that the sentence is manifestly excessive. Four grounds contend that the learned sentencing judge failed to give sufficient weight to particular specified factors relevant to sentence. One ground asserts that his Honour erred by failing to impose a probation order. The remaining ground contends that the sentencing judge "erred by finding that acts comprising the crimes of causing grievous bodily harm and assault were not committed spontaneously".
For the reasons which follow, all but one of the grounds of appeal should fail. I have had the advantage of reading the reasons of Estcourt J in draft form. I agree with his Honour that the first ground, which asserts that the sentence is manifestly excessive, should succeed, and that the appeal should be allowed. I respectfully differ from his Honour about why that is so, and what should follow from that conclusion. In my view the learned sentencing judge did not fall into error by imposing a head sentence of imprisonment for three years with one year of the sentence suspended. I would not interfere with that part of the sentencing judge's order. However, the part of the order which provides that the appellant is not eligible to apply for parole until having served 18 months of the sentence operates to make the sentence manifestly excessive.
The form of the sentencing order
Some preliminary comments are required concerning the form of the order made by his Honour suspending part of the sentence. His Honour proceeded to sentence on 11 September 2017. After imposing a term of imprisonment of three years his Honour ordered:
"… that the last twelve months of such sentence are suspended on condition that he commit no crime or offence of harm to the person or property, and undertakes any behavioural or psychological programs whilst in prison. Failure to undertake such programs offered or provided will activate the sentence".
After announcing the sentencing order his Honour addressed some further remarks to the appellant intended to explain the order. His Honour said:
"… You'll do at least eighteen months, that's your non-parole period, but at the end of that – but it's as likely it could be two years. At the end of that period it is to be suspended on condition that you commit no crime or offence, and offence means just a simple assault, nothing more, just some form of physical violence to a person or property. And the second condition is that whilst in custody you undertake any behavioural or psychological programs. If you don't, that's your choice, then that sentence will be activated and you'll serve the remaining one year."
The sentencing order, when first made, did not specify the period that the order suspending part of the sentence was to remain in force as is required by the Sentencing Act 1997 ("the Act"), s 24(1), either as to the date the period was to commence or the length of the period. On 20 September 2017 his Honour made a correction, and specified the period for which the order is in force as three years. His Honour did not specify when the period was to commence. Sometimes sentencing orders provide that the period for which the order suspending a sentence is in force commences on the release of an offender from prison. However, in this case, given that the suspended sentence was subject to a condition that required the appellant to undertake programs while in custody, the three year period for which the order was to be in force could only be taken to have commenced on the date of sentence.
There is another matter. With respect to the learned sentencing judge, his explanation of the effect of the sentence was, in one aspect, incomplete. By the Act, s 24(1), if a court makes an order suspending the whole or a part of a sentence of imprisonment, the order is subject to the condition that the offender does not commit another offence punishable by imprisonment during the period the order is in force. Thus, independently of the condition enunciated by his Honour's order that the appellant "commit no crime or offence of harm to the person or property", the legislation imposed a condition that the appellant not commit an offence punishable by imprisonment for three years from the date of sentence. The statutory condition is not, in contrast to the condition stated by the sentencing judge, confined to offences of a particular category or description. Commission of any offence punishable by imprisonment will constitute a breach of the statutory condition.
The circumstances of the crimes
The crimes were committed on Friday, 23 September 2016. The appellant and the complainant, Luke Wakefield, were then both 26. They had been friends for a long time. However the appellant felt aggrieved because, despite repeated requests, Mr Wakefield had not paid back the $100 the appellant had lent him about two months earlier to enable him to register his car. At the time, the appellant was employed by Telstra. At about 5.20pm the appellant was driving his marked work van along the main road at Claremont when he recognised Mr Wakefield's utility parked in the car park of a service station. Mr Wakefield was inside the service station buying food. The appellant parked his van, took off his work T-shirt, and retrieved from his van a steel device used to remove concrete lids from telecommunications pits. Photographs of the device were given to the sentencing judge. It is a metal device made of circular steel. Its weight and dimensions were not described, but from the photographs and CCTV footage shown to the sentencing judge, the steel from which the implement is made seems to be, for the most part, about 10-15 millimetres in diameter. At one end the steel is moulded into a triangular shape as a handle, with a grip made from thicker and heavier steel. From the base of that triangular section the bar extends in a straight line to a length of about 70-80 centimetres.
After removing the device from his vehicle, the appellant walked with it to Mr Wakefield's vehicle. He leant against the tray of the utility and waited a minute or two for Mr Wakefield to come out of the store. When Mr Wakefield emerged the appellant walked towards him. As he did so, Mr Wakefield saw what the appellant was carrying and asked him, "do you really want to do this", and the appellant replied "Fuck, yeah, I do." The appellant held the implement he was carrying at the end away from the handle and swung the heavier handle end at the complainant. On the first occasion he missed. On the second occasion he struck Mr Wakefield on his head behind his left ear, causing him to fall to the ground. Then, while Mr Wakefield was on the ground, the appellant used the weapon in a forceful prodding or punching motion, as opposed to a swinging motion, to strike the complainant to the body and twice more to his head. He punched the complainant to his face with a closed fist and kicked his face with his left foot. The appellant then left and drove away. The complainant was left lying curled up on the driveway of the service station and a pool of blood can be seen gathering under his head.
The appellant's conduct was witnessed by a number of other people. One was a woman who was sitting in the passenger seat of a car parked at the service station. While the attack was in progress she called out more than once for the appellant to stop, and told him that her child was in her car. The appellant did not stop. After each of her calls the appellant again either punched or kicked the complainant and responded, "he owes me money". Other witnesses heard the complainant ask three or four times for the appellant to stop hitting him. One witness heard the appellant say, "You're nothing but a dog Luke."
Mr Wakefield was taken to the hospital and examined in the emergency department. He had an eight centimetre haematoma and a five centimetre wound on his head. The wound was closed with staples. No further injury was then disclosed, but over the next few days Mr Wakefield experienced headache, nausea, light sensitivity, blurred vision and some nasal discharge. He had a swollen nose with two black eyes. On his return to the hospital further investigation revealed a non-displaced skull fracture to the left occipital bone. Although no bleeding or bruising to the brain was discovered, the nasal drip he experienced suggested a leak of cerebral spinal fluid from the skull fracture. Mr Wakefield did not attend for regular follow up treatment, but a medical officer who saw him on 22 November 2016 at an outpatient clinic reported that his concussion symptoms had largely resolved. A specialist review of the complainant's medical records on 1 March 2017 indicated that the complainant's injuries were not expected to result in long-term consequences, provided he did not suffer any further brain injury. He is left at higher risk of future injury.
The appellant was quickly identified as the assailant and was interviewed by the police on the evening of the crimes. He admitted what he had done. He told the police that when he saw the complainant's vehicle he experienced "extreme anger", but he could not explain why he continued to hit and kick the complainant, and that he was "not fully in control of his senses at that stage". He said that he and his friends had supported Mr Wakefield emotionally and financially, but Mr Wakefield had been "bad-mouthing him", and had not paid back the money he borrowed. When the appellant saw Mr Wakefield at the service station he "just snapped".
The appellant was initially charged with wounding and common assault. He pleaded not guilty. When the serious nature of the complainant's injuries became known, the appellant was charged with causing grievous bodily harm and Criminal Code assault. It is apparent that the charge of causing grievous bodily harm arises from the blows to the complainant's head, and the assault is constituted by the blows to his body. Both charges involve the same course of criminal conduct. He pleaded guilty to those charges on 23 August 2017.
Ground 3
This ground asserts that the sentencing judge erred by "finding that acts comprising the crimes of causing grievous bodily harm and assault were not committed spontaneously". During the sentencing hearing counsel for the appellant submitted to the sentencing judge that, after seeing the complainant's car at the service station, the appellant:
"… made the decision spontaneously to pull into the service station and his intention at that stage was to verbally confront the complainant over the money owed. He has a recollection of grabbing the pit lid lifter but he denies that he intended to … assault the complainant with it; at that stage he instructs his intention was to intimidate the complainant. He has a recollection of walking towards the complainant and … of the complainant laughing at him. His recollection of events thereafter is not good …".
A little later in the hearing the appellant's counsel submitted that until the complainant laughed at him, "there was not an intention to do anything other than have a verbal confrontation with the complainant". After having heard the plea in mitigation the sentencing judge sought further assistance from counsel about comparable sentences and said "what's troubling me is the location of the vehicle, the waiting, the move away from the vehicle holding what could have caused death, a metal implement which is quite strong, and an immediate blow or series of blows …". No other submissions were made by the appellant's counsel. When his Honour proceeded to sentence, his sentencing remarks included the following:
"The Court accepts that he had a grievance but given that he had waited at the complainant's car while holding the metal bar, launched a savage attack and immediately struck the complainant to the head and body and finished with a kick to the face on the prone victim it could not be said that it was spontaneous conduct undertaken in the course of a verbal confrontation or an immediate and unthinking response."
I do not detect any error in the approach taken by his Honour, or that he imposed sentence on a factual basis inconsistent with facts asserted by the appellant. In any event, given the other factors which make the appellant's crimes so serious, the error asserted by this ground is not such as to persuade me that a less severe sentence is warranted in law and should be passed in substitution for the sentence imposed: Criminal Code, s 402(4).
Ground 7
This ground contends that the sentencing judge erred by "failing to impose a probation order". It has no merit. Imposition of a probation order was a sentencing option available to the sentencing judge. Imposition of a probation order without more would plainly have been an inadequate response to these crimes, but it could have been made in combination with other sentencing orders: the Act, s 8(1). However, his Honour was under no duty or obligation to make such an order. The decision to not make a probation order was open to his Honour in the proper exercise of his sentencing discretion, and does not disclose error.
Grounds 2, 4, 5 and 6
By these grounds the appellant contends that the sentencing judge failed to give sufficient weight to, respectively, the appellant's plea of guilty, his "progress towards rehabilitation", the appellant's "major depressive disorder" and the appellant's "previously good record". The proposition that a guilty plea, reform and rehabilitation, impaired mental function and criminal record are all factors relevant to sentence is unarguably correct. However they are not proper grounds of appeal for the reasons explained by Porter J as a member of this Court in TAP v Tasmania [2014] TASCCA 5 at [30], and by me in Mulholland v Tasmania [2017] TASCCA 2 at [17]. It cannot be said that the sentencing judge failed to give sufficient weight to any or all of those factors unless the sentence is manifestly excessive taking into account all matters relevant to sentence. The identified factors are to be considered with other relevant sentencing considerations, some of which are conflicting and contradictory, but all of which must be weighed by the sentencing court in determining the proper sentence to be imposed: Pavlic v The Queen (1995) 5 Tas R 186; Markarian v The Queen [2005] HCA 25, 228 CLR 357. If the sentence is not manifestly excessive taking all such considerations into account, then it cannot be said that his Honour failed to give sufficient weight to any one of them.
Ground 1 – Manifest excess
The circumstances which justify intervention by an appellate court on the ground that a sentence is manifestly excessive or manifestly inadequate have been stated on many occasions. I respectfully adopt Estcourt J's re-statement of the principles in his Honour's reasons. An appellate court must be satisfied that, with proper allowance for the wide discretion to be afforded a sentencing judge, the sentence is so manifestly wrong that there must have been some misapplication of principle. Error may be established when the sentence is unreasonable or plainly unjust. All matters relevant to sentence must be taken into account.
Viewed objectively, these were serious crimes. A stern response was required to meet the sentencing objectives of specific and general deterrence, punishment and denunciation. The appellant committed an unprovoked attack involving multiple blows to the head of the victim with a weapon. The crimes were committed in a public place in daylight when adults and children were exposed to violence. By his plea to the crime of causing grievous bodily harm under the Code, s 172, the appellant admitted that he caused grievous bodily harm to the complainant, and that he either intended to cause grievous bodily harm or was subjectively reckless; that is, he appreciated that grievous bodily harm was a likely consequence of his acts. Adopting the position as to intention most favourable to the appellant, he acted despite an appreciation that the blows he struck to the complainant with the heavy implement he used were likely to result in bodily injury of such a nature as to cause or be likely to cause serious injury to the complainant's health. The attack was not especially prolonged, but was long enough to involve multiple blows. The appellant did not take the opportunity to desist, despite being requested by the complainant and the onlooker to do so.
The appellant's contentions, as can be elicited from the grounds of appeal and his brief submissions, are principally directed to his subjective circumstances. He is not married and has no children. He has no relevant prior convictions. At the time of the crimes he was employed as a linesman for Telstra. He had held that employment for about four and a half years. However, in the period leading up to the crimes, his work had become increasingly demanding and stressful for him. He was experiencing some financial pressure. Although all factors relevant to sentence are to be taken into account, the appellant placed particular emphasis on the identified specific factors: his plea of guilty, his good record, rehabilitation and his mental health.
An important aspect of the appellant's sentencing is his plea of guilty. Pleas of guilty should ordinarily attract a reduction in sentence: Ilic v Tasmania [2009] TASSC 94, 19 Tas R 201. A plea of guilty may indicate an acceptance of responsibility, contrition and remorse. However, mitigation also arises from the utilitarian benefit of a plea of guilty: Dennison v The State of Tasmania [2005] TASSC 54, 15 Tas R 50, per Slicer J at 54 [14]. That is so even if the case against an accused is strong and the plea "was born of nothing other than acceptance of the inevitable": Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448, per Estcourt J at 458 [41]. See also DPP (Cth) v Thomas [2016] VSCA 237, 315 FLR 31 and Xiao v The Queen [2018] NSWCCA 4, in which intermediate courts of appeal in Victoria and New South Wales considered the mitigatory effect of a plea of guilty in federal offences.
In this case the appellant was entitled to mitigation from his plea. It facilitated the course of justice and meant that the complainant and the witnesses were not required to prepare for and appear as witnesses during a trial. They were not required to give evidence and be cross-examined, thus did not have to re-visit and recount the events of that day. It was not a particularly early plea but was entered not long after the extent of the complainant's injuries and the amended charges were brought to the appellant's attention. Some delay in entry of the plea was explained by an investigation into the appellant's mental capacity. The mitigatory effect of the plea was recognised by the sentencing judge. His Honour said that the appellant "is to be afforded some amelioration for that plea, although he could have pleaded earlier to the lesser crimes".
The appellant had no relevant prior convictions. The sentencing judge recognised the appellant's otherwise good record. His Honour mentioned in his sentencing remarks that the appellant had "never been to prison and has only been convicted on three minor traffic matters".
A factor in sentencing in this case is the appellant's mental health. Mental disorder or abnormality or impairment of mental function may be relevant to sentence in the ways explained by the Victorian Court of Criminal Appeal in R v Verdins, Buckley and Vo [2007] VSCA 102, 16 VR 269. In this State, Verdins was applied in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 by Porter J, with whom Tennent J agreed. His Honour's statements of principle have been applied in a number of decisions of this Court since then. In CBF, at [36], he applied the reconsideration and re-statement of the principles in R v Verdins at 276:
"[32] Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."
This appeal requires consideration of the nature and severity of the condition suffered by the appellant, whether it results in impairment of mental function, and how it may be connected to the offending. Submissions were made to the sentencing judge by his counsel, and his Honour was given a report about the appellant dated 17 July 2017 written by a forensic psychiatrist, Dr Michael Jordan, of the Tasmanian Forensic Mental Health Service. Dr Jordan was not the appellant's treating practitioner but interviewed him at the request of the appellant's solicitors on 9 June 2017. He was given information about the charges against the appellant and, it is to be inferred from the contents of the report, he also examined other medical records concerning the appellant. Dr Jordan related the appellant's family and work history. The appellant told Dr Jordan that his parents separated about ten years ago. He said he was badly bullied at school. He was an average student but left school after having completed grade 11 to take up employment. He held various jobs before moving to Telstra when he was 22. According to Dr Jordan's report, the appellant took several months of sick leave towards the end of 2015 "due to issues with his mental health" arising from separation from his partner in 2013 and increasing pressure at work. He commenced heavy consumption of alcohol, adding to the strain on his finances. He had never been admitted to a psychiatric unit. He did not suffer a decline in mental health until 2014, and did not require any treatment until towards the end of 2015. In November 2015 he presented twice to the emergency department of the Royal Hobart Hospital. On the first occasion he reported having vomited blood, and experienced difficulty in swallowing and eating food. He reported again a few days later after having experienced chest pain and shortness of breath. He presented as being extremely anxious about his physical health. Over the following weeks he became increasingly anxious about his physical health. In February 2016 he saw his general practitioner who prescribed anti-depressant medication. The appellant undertook some sessions with a psychologist which led to some improvement in his symptoms. In March 2016 he was able to return to work although he continued to experience problems with sleep and was drinking alcohol to excess.
After examining the appellant on 9 June 2017, Dr Jordan reported that after the crimes the appellant's mental health continued to deteriorate. The appellant informed Dr Jordan that he had experienced some panic attacks which involved recurrent and unexpected attacks of "intense fear" involving sensations of shortness of breath, sweating, chest pain and dizziness. It is not entirely clear from the report as to whether, and if so to what extent, these panic attacks occurred prior to 23 September 2016. Dr Jordan reported that at the time of the examination the appellant exhibited depressive symptoms, including low self-confidence, low self-worth, poor sleep pattern, increasing social isolation and lack of interest in his self-care and previous interests. By that time the appellant had fewer problems with anxiety, was not psychotic and was oriented in time, person and place.
Dr Jordan was asked to give answers to a series of questions. He was asked whether, on 23 September 2016, the appellant was suffering from any mental disorder or abnormality, or impairment of mental function. He reported that, in his opinion, the appellant's reported panic attacks (from which it is to be inferred that at least some panic attacks occurred prior to the crimes) met the diagnostic criteria for Panic Disorder. Dr Jordan described that the appellant had a "more generalised feeling of unease and anxiety" but which responded well to medication. Dr Jordan reported that the appellant described a change in his symptoms about two months before the offences in that:
"… although his anxiety symptoms had improved, he noticed that they were replaced with feelings of low self-worth, low self-confidence, sleep disturbance and lack of interest in social activity and previous hobbies. He also described fatigue and poor energy levels in the period leading up to the index offence. Although it is not clear if he had been formally diagnosed, at the time of the offence, he would have met the criteria for a Major Depressive Disorder".
When asked whether any disorder impaired the appellant's ability to exercise judgment, Dr Jordan answered that "although a Major Depressive Disorder can impair judgment, this is only usually the case when that depressive disorder is more severe". Dr Jordan did not state whether the appellant's depressive disorder was in fact severe, only that there was some evidence that the appellant's judgment at work had been impaired. When asked whether any disorder impaired the appellant's "ability to make calm and rational choices or to think clearly", Dr Jordan stated that the depressive disorder "would have affected his sleep pattern and energy levels". The problems, according to Dr Jordan, would have been compounded by the appellant's "regular use of alcohol after work". The combination of problems that the appellant was facing in his life "would have made him more liable to ill-considered decisions such as on the day in question". The appellant was not directly affected by alcohol at the time of the crimes. Dr Jordan's report suggests only that the appellant's consumption of alcohol was one of a number of factors which combined to affect the appellant's judgment. To the extent that consumption of alcohol induced the offending, it is not mitigating. Dr Jordan's report did not extend, at least with any clarity, to the proposition that alcohol contributed to impaired mental functioning. According to Dr Jordan the effects of the bullying suffered by the appellant at school may have "increased his propensity to act in an impulsive, disinhibited fashion". Dr Jordan states that there is no indication that the appellant's depression prevented him from forming an intent to commit the offence, although there was "likely some deficits in judgment".
As to treatment, Dr Jordan recommended that the appellant's alcohol misuse be addressed and noted that his anti-depressant medication would continue. When asked about imposition of a sentence of imprisonment on the appellant, Dr Jordan indicated that treatment would be available to the appellant in prison, although not to a standard available in the community. He opined that the appellant would likely feel further isolation and fear and, at least initially, his mental health would deteriorate. When asked to make a general comment, Dr Jordan stated that the appellant "resorting to violence was an impulsive moment of intense frustration".
In my respectful opinion, the material before the sentencing judge justified the conclusion that the mental condition suffered by the appellant at the time of offending was of some, but limited, weight. From Dr Jordan's report it may be concluded that, at the time of the crimes, the appellant may have suffered some "impairment" or "deficit" in judgment, that he was "more liable" to ill-considered decisions, and that there may have been some increase in propensity to impulsivity. However, on my assessment of the report, the nature and severity of any mental condition was not so serious as to reduce the appellant's moral culpability by anything beyond a limited extent, particularly when compared to the seriousness of the violence he inflicted: Freeman v The Queen [2011] VSCA 349 at [27]-[28]. The crimes were not especially impulsive. After arming himself the appellant had ample opportunity to reflect on his conduct before acting, and the material does not justify the conclusion that he was unable to do so. The extent to which his judgment was impaired is not specified, and the appellant was able to exercise judgment in other ways. Before the sentencing judge, the appellant's counsel did not contend that the content of Dr Jordan's report supported the assertion that the appellant's moral culpability was reduced. The submission was limited to the contention that the appellant's mental health reduced the significance of general deterrence as a sentencing consideration, and was relevant to how the appellant would deal with prison. The nature and severity of the symptoms did not eliminate general deterrence or specific deterrence as sentencing considerations. At its highest, the material may have moderated the significance of general deterrence but, again, not to any great extent. The only material which had a bearing on the type of sentence to be imposed was Dr Jordan's opinion that treatment only to a lesser standard would be available in prison and that the appellant may, at least initially, suffer some deterioration in mental health. I see no reason to conclude that he would not obtain any treatment he reasonably requires.
In my view, the material before the sentencing judge about the appellant's mental health, was not, even when taken in combination with all other factors relevant to sentence, sufficient to justify the conclusion that the head sentence of imprisonment for three years, with one year suspended, manifested error justifying appellate intervention.
I have a different opinion about the non-parole order. Because one year of the three year sentence was suspended, the combined effect of s 17(3) and (8) of the Act was that the sentencing judge could have ordered that the appellant be eligible to apply for parole after having served 12 months of the sentence. His Honour ordered eligibility for parole only after 18 months had been served. A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v The Queen (1974) 131 CLR 623 at 629; Carr v The Queen [2002] TASSC 60, 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASCCA 18 at [47]; Director of Public Prosecutions v Harris [2013] TASCCA 5. There is no presumption that the non-parole period should be the minimum: Pickrell v Tasmania [2011] TASCCA 13 at [13]. However, a long parole ineligibility period may make a sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J at [56]-[59]. In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was), with whom Neasey J agreed, commented on the effects of not making an order that a defendant be eligible for parole at the earliest possible time:
"The making of an order by a sentencing judge extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by the sentencing judges before making an order extending the non-parole period."
All of the sentencing factors to which I have already referred are relevant to the question of parole. To my mind, having ordered that 12 months of the head sentence be suspended, the imposition of a non-parole period greater than the minimum, thus requiring the appellant to serve 18 months rather than 12 months, was unjustified. It increased the severity of punishment and was not conducive to the appellant's rehabilitation. In the circumstances of this case, it resulted in the sentence becoming manifestly excessive. My conclusion is reinforced by the matters conveyed to the Court by the appellant during the hearing of the appeal about matters that have happened since he was sentenced: the Code, s 402(4A). It is plain from his Honour's sentencing remarks that he was concerned to fashion a sentencing order directed at the appellant's rehabilitation. His Honour's expressed intention was to permit the appellant access to programs directed at his mental health which were either not available to the appellant in the community, at least without payment he could not afford. However the appellant informed the Court that he had attempted to enrol in the type of prison programs referred to by the sentencing judge, but was still on the waiting list. In my view, for the reasons I have explained, this ground should succeed.
Result and orders
I would allow the appeal and quash the sentence imposed by the learned sentencing judge. I would re-impose the same sentence as his Honour, except I would omit the suspended sentence conditions imposed by the sentencing judge, which I consider to be unnecessary, and allow for parole at the earliest opportunity. The result is that I would re-sentence the appellant to imprisonment for three years from 4 September 2017. I would suspend 12 months of that sentence for three years from 4 September 2017, and order that the appellant not be eligible for parole until having served 12 months of the term.
File No CCA 2740/2017
CHRISTOPHER ROY BUTT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
28 March 2018
For the reasons given by Pearce J, I agree that the sentence is manifestly excessive in the sense explained by his Honour. I am not persuaded that of itself the head sentence of three years, the execution of 12 months of which was suspended on conditions, is one that was outside the range of sentences reasonably available in the exercise of a sound discretionary judgment. I agree with the orders proposed by Pearce J.
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